The Child Protection Paradox in the Criminal Laws of EU Member States: Self-Generated Sexual Images and the Limits of Criminalisation

Abstract

The criminal law assessment of consensual sexting between minors requires interpretation within a child-rights framework that accounts for children’s evolving capacities and the ultima ratio principle of criminal law. Although child self-generated sexual images and videos (CSGIV) may, in many jurisdictions, conceptually fall within the scope of offences relating to child pornography or child sexual abuse material (CSAM), consensual peer-to-peer sharing typically lacks the classical elements of sexual exploitation. This article provides a structured comparative overview of how the criminal law systems of the twenty-seven European Union (EU) Member States regulate consensual minor-to-minor sexting, identifying three regulatory models and assessing their compatibility with child-rights standards. The research is based on a structured comparative legal analysis drawing on the report and country reports of the second monitoring round of the Lanzarote Committee, complemented by a primary analysis of the relevant criminal law provisions of the Member States. The analytical framework relies on a coding manual developed by the authors along thematic dimensions. The findings identify three regulatory models: systems that provide explicit differentiation and safeguards; systems that formally criminalise the conduct but operate with implicit mitigation; and systems that entail a broad risk of criminalisation. The analysis reveals considerable normative fragmentation and demonstrates that the absence of explicit differentiation may expose forms of adolescent self-expression to criminal liability. The article concludes that, to comply with child-rights standards, explicit normative safeguards and a consistent application of the exceptional character of criminal law are required.

1. Introduction

The expansion of digitalisation and social media has fundamentally transformed the forms of communication and intimacy among young people. Emotional and sexual self-expression within adolescent relationships is now often realised through digital platforms, one manifestation of which is sexting (Budde et al. 2022). The phenomenon of sexting among children—where young people share intimate content, messages, images, or videos with one another—is a product of the modern digital age and raises dilemmas on a global scale at the intersection of child rights and criminal law (Cooper et al. 2016).

The study recognises that a terminological shift can be observed in the academic literature and international discourse from the term “child pornography” towards “CSAM” (Child Sexual Abuse Material) and “CSEM” (Child Sexual Exploitation Material), which more accurately reflect the abusive nature of the content concerned (Johnson 2025). At the same time, in a significant number of EU Member States, national criminal law provisions continue to employ the term “child pornography” (Kovács-Szépvölgyi and Cs. Kiss 2025). Accordingly, this article primarily uses the term “CSAM”, while the expression “child pornography” is retained only where it reflects the terminology of applicable legal sources.

The article follows the definition of the child under the Convention on the Rights of the Child, encompassing all persons under 18 years of age. In line with the Committee on the Rights of the Child’s interpretation, adolescents are not treated as a separate legal category but as part of the broader concept of the child, while recognising their evolving capacities (Committee on the Rights of the Child 2003). At the same time, the term “adolescents” is used where appropriate, reflecting its prevalence in the empirical literature on sexting.

In the absence of a definitional consensus, the concept of sexting remains contested in the literature, reflecting significant variation in how the phenomenon is conceptualised and operationalised. Definitions differ, inter alia, in their scope (ranging from broad understandings including any sexual content to narrower image-based approaches), in whether text-based communication is included, and in whether consensual and coercive behaviours are treated as part of the same category. Differences in study populations and measurement tools further contribute to this conceptual fragmentation (Gassó et al. 2019). While the development of a shared conceptual framework would be desirable, this article does not seek to resolve these definitional debates. Instead, it adopts a typological approach, widely used in the literature, distinguishing between different forms of sexting-related behaviour (Van Dijck et al. 2025). A common distinction is drawn between active and passive sexting: the former refers to sending, requesting, or forwarding content, while the latter denotes receiving such content or being asked to send it. Another categorisation of central importance differentiates between consensual and non-consensual forms based on consent. The distinction between primary and secondary sexting is also widely used: the former refers to voluntary content sharing between the original parties, while the latter denotes forwarding or distributing such content beyond that primary relationship. Finally, the literature distinguishes experimental sexting—typically occurring in romantic, relational, or recreational contexts—from aggravated sexting, which takes place in coercive, abusive, or otherwise malicious environments (Van Dijck et al. 2025). Of these forms, aggravated, secondary, and non-consensual sexting are closely associated with victimisation, anxiety, depression, trauma, and violations of children’s rights (Naezer and Van Oosterhout 2021; Doyle et al. 2021).

Sexting may therefore also be interpreted, in an appropriate context, as a form of adolescents’ sexual self-determination and identity exploration (Setty 2019). At the same time, the unauthorised forwarding or disclosure of intimate content, as well as non-consensual and aggravated forms of sexting, may have serious consequences for the young people involved and entail an increased risk of victimisation and of being subjected to abuse in the digital environment (Powell and Henry 2014). From a criminal law perspective, minors may simultaneously become victims and perpetrators of sexting, as behaviours that are typical in adolescent development—as consensual peer sexting—may fall within criminal law frameworks originally designed to combat material depicting the sexual exploitation of children (Villa-Henao et al. 2025; Van Ouytsel et al. 2021). Legal and educational discourses frequently blur the distinction between consensual and non-consensual sexting, reinforcing harm-centred narratives and legitimising overly punitive responses. As a consequence, in some legal systems, offences aimed at combating the sexual exploitation of children are applied to behaviours between peers that may be interpreted within a developmental context, which may ultimately lead to criminal sanctions. This tendency directly relates to the central question of the present study: how effective protection of children can be ensured without criminalising manifestations of adolescent autonomy that are typical of this stage of development. This concern is consistent with Villacampa’s (2017) analysis of teen sexting, which cautions against punitive responses that conflate adolescent sexual experimentation with deviance (Villacampa 2017).

From a child rights perspective, the primary normative framework for interpreting this phenomenon is provided by the United Nations Convention on the Rights of the Child (CRC) (United Nations General Assembly 1989). Article 16 of the CRC guarantees the protection of the child’s privacy and reputation, which is of relevance in cases where intimate content created in the context of sexting is disseminated without consent. Article 19 requires the protection of children against all forms of violence, including psychological and digital forms of abuse. Article 34 calls for action against sexual exploitation, which in the digital environment is reflected in the application of prohibitions on child pornography. At the same time, Article 5—through the recognition of children’s evolving capacities—and Article 6—by guaranteeing the right to development—establish an interpretative framework requiring that legal responses also consider adolescents’ gradually strengthening autonomy and identity development. In cases involving self-generated intimate content shared consensually between peers, the structural elements of exploitation and hierarchical power relations are typically absent. This raises the question of how the ultima ratio character of criminal law, and the best interests of the child (Article 3 CRC), should be applied. In this context, the ultima ratio principle refers to the idea that criminal law should be used only as a measure of last resort, applied where less intrusive responses—e.g., educational, protective or other non-penal measures—are insufficient to address harm. Within the international child rights framework, both firm action against sexual abuse and a differentiated approach that considers children’s evolving capacities in the digital environment are required (Quayle 2022).

These obligations are further specified by the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (United Nations General Assembly 2000), which sets out requirements related to the prohibition of the sexual exploitation and abuse of children. At the same time, the literature—as Maxwell’s analysis—points out that the regulatory logic of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC) is strongly focused on criminal law, while provisions concerning non-repressive responses are less developed. This shift in emphasis is particularly relevant in the digital environment. Criminalisation obligations relating to “child pornography” may technically also encompass self-generated content produced and shared consensually between peers, even though such material may lack the classical elements of exploitation (Maxwell 2022).

General Comment No. 25 (2021) on children’s rights in relation to the digital environment adopted by the United Nations Committee on the Rights of the Child can be regarded as the most important point of reference for the assessment of sexting. The document emphasises that the digital environment creates new opportunities for children’s development while also presenting significant risks and stresses the need to distinguish between sexual exploitation and interactions occurring between peers. Although General Comment No. 25 relies strongly on a criminalisation-oriented, protective logic, it also highlights the importance of considering children’s evolving capacities and their participatory rights (Ayalew et al. 2024). Considering children’s evolving capacities is particularly important in this context, as their ability to understand risks, exercise autonomy and participate in decision-making develops progressively with age and maturity (Committee on the Rights of the Child 2003, 2021). Legal and policy responses must therefore be calibrated to reflect these differences and ensure both effective protection and respect for children’s agency.

The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), although not specifically designed to regulate sexting, nevertheless provides an important normative framework for the criminal law assessment of sexual content created by children within the regional legal framework of the Council of Europe. Article 20 classifies sexually explicit material depicting children as “child pornography”, which, in principle, may also encompass voluntary sexting between peers. At the same time, Article 20(3) provides room for manoeuvre for States Parties to exclude from criminal prohibition self-generated content that is age-appropriate, based on mutual consent, and restricted to private use, thereby allowing for a differentiated regulatory approach (Council of Europe 2007). The framework established by the Lanzarote Convention is based on the duality of child protection and children’s autonomy: it supports the clear criminalisation of coercive or exploitative digital conduct—such as grooming or non-consensual distribution—while leaving space for policy approaches that address consensual, relationship-contextual sexting primarily through educational and child protection measures rather than through criminal law. This dual logic makes the Lanzarote Convention one of the most important reference points for a European regulatory approach that simultaneously considers children’s online safety and sexual autonomy (Witting 2021). The second monitoring round of the Lanzarote Committee also emphasised the need for a differentiated approach, highlighting that self-generated content may be linked both to adolescent self-expression and to risks of exploitation, and therefore requires a distinction between consensual peer interactions and situations involving coercion, abuse or non-consensual dissemination (Espino García 2022).

Within the legal framework of the European Union, action against the sexual exploitation of children is primarily based on Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, which aims to harmonise criminal offences relating to the sexual abuse and exploitation of children and child pornography. At the same time, similarly to the Lanzarote Convention, the Directive provides explicit room for discretion for Member States in addressing consensual self-generated content. Article 8(3) allows Member States to exclude criminal liability in cases where the sexual content is produced with the consent of minors who have reached the age of sexual consent and is used exclusively for private purposes. This provision further supports the conclusion that the European legal framework does not prescribe automatic criminalisation in cases of consensual minors-to-minor sexting (European Parliament and Council 2011). As a consequence, the legal systems of EU Member States display considerable differences in their criminal law responses to consensual sexting between minors: some systems adopt differentiated regulatory approaches, while others continue to interpret the phenomenon within the traditional offence framework of child pornography, which, according to the literature, may also entail the risk of criminalising consensual content exchanged between adolescents (Witting 2019). In 2024, the European Commission proposed a revision of Directive 2011/93/EU aimed at modernising and expanding criminal law rules against the sexual exploitation of children, with particular attention to emerging forms of abuse in the online environment. However, the proposal still does not contain explicit provisions addressing consensual sexting between minors, meaning that the regulation of this issue largely remains within the competence of Member States (European Commission 2024).

Since all Member States of the European Union are parties to the Lanzarote Convention, the differences observed in the criminal law assessment of consensual sexting between minors do not stem from variations in international commitments but primarily from differences in national implementation and legal interpretation. Accordingly, this study analyses EU Member States as a comparative unit, considering that all of them are bound by the international legal framework established by the Lanzarote Convention, while the autonomous legal order of the European Union introduces an additional dimension of harmonisation. The research applies a structured comparative legal method to examine whether national criminal law systems maintain the structural risk of child pornography-based criminalisation in cases of minors-to-minor sexting, or whether they incorporate explicit normative safeguards aimed at preventing the criminalisation of children themselves. The issue may therefore be framed as a normative assessment of the balance between children’s evolving capacities and the ultima ratio character of criminal law.

2. Methods

The research is based on a comparative legal analysis conducted from a child rights-oriented perspective. The aim was to systematically map and classify the regulatory approaches of EU Member States to consensual minor-to-minor sexting and to assess the structural risk of criminalisation within these legal frameworks. To this end, the study applied a coding manual (codebook) developed specifically for the research. The empirical basis of the analysis consisted of the implementation report and country reports of the second thematic monitoring round of the Lanzarote Committee, as well as a primary textual analysis of the relevant criminal law provisions of the Member States (Council of Europe 2022).

For the purposes of the analysis, several key concepts were operationalised as coding categories. “Child self-generated sexual images and videos” (CSGIV) refer to sexual images or videos created (or caused to be created) by a person under the age of 18 depicting themselves. Within this framework, a distinction is drawn between consensual, primary sexting, defined as the voluntary creation or sharing of such content between peers, and non-consensual, secondary sexting, referring to the forwarding or dissemination of such material without the consent of the person depicted. In addition, CSAM (or “child pornography”) offences are understood as offences under national law relating to the production, possession, distribution, or disclosure of such material.

The research relied on two layers of sources. As a primary data source, we used the implementation report and country reports of the second monitoring round of the Lanzarote Committee, which were verified and supplemented through a primary analysis of the relevant national legislation of the Member States. The coding was carried out by two researchers based on a predefined codebook developed for the purposes of the study. The analysis was conducted using Excel, and the coding results were systematically cross-checked to ensure consistency and reliability. Any discrepancies were resolved through consensus-based discussion, strengthening the consistency and reliability of the coding process. Most of the sources were available in English. During the validation of national legal provisions, official English-language translations were used where available; in their absence, the relevant statutory provisions were interpreted with the assistance of translation software. This approach inevitably entails a degree of interpretative approximation, which constitutes a methodological limitation inherent in multilingual comparative legal research. The primary objective of the analysis was to identify the normative risk of criminal liability, rather than to provide a comprehensive reconstruction of the doctrinal details of each legal system.

Each country was coded according to the following values: 0 = absent/not characteristic/not applicable; 1 = partial/limited/conditional; 2 = present/clearly established; 9 = not ascertainable based on the available monitoring materials and national legislation. The code 9 does not indicate missing data, but rather cases in which the relevant issue could not be reconstructed based on the available sources. This category reflects informational or normative uncertainty and does not constitute an ordinal value on the 0–1–2 scale. The numerical coding was not intended as a quantitative measurement but served as an analytical structuring tool to make the structural characteristics of the regulatory frameworks comparable.

The coding framework—represented in

Table 1. Coding framework applied in the analysis.

Dimension	Variable	Categories/Focus	Description
Legal classification	A1	CSAM/“child pornography”	Whether self-generated content is classified under child pornography laws
Criminal liability–production	A2	Yes/No	Criminal exposure for self-production of content
Criminal liability–possession	A3	Yes/No	Liability for possession of self- or peer-generated content
Consensual sharing (primary sexting)	A4	Criminalised/Not criminalised	Legal treatment of consensual sharing between peers
Non-consensual dissemination (secondary sexting)	A5	Criminalised/Not criminalised	Liability for forwarding or public dissemination
Doctrinal differentiation	B1	Present/Absent	Distinction between primary and secondary sexting
Aggravation	B2	Yes/No	Whether non-consensual dissemination is treated more severely
Alternative legal tools	B3	Present/Absent	Existence of non-CSAM offences (e.g., image-based abuse)
Exceptions	C1	Present/Absent	Explicit exemption for consensual peer sexting
Close-in-age rule	C2	Present/Absent	“Romeo and Juliet”-type provisions
Practice distinction	C3	Present/Absent	Distinction between private possession and dissemination
Preferred response	D1	Criminal/Protective	Whether non-criminal (child protection/education) responses are prioritised
Platform & protection link	D2	Present/Absent	Integration of notice-and-takedown and child protection
Principles	E1	Present/Absent	Reference to proportionality, best interests, ultima ratio
Critical perspective	E2	Present/Absent	Recognition of risks of criminalising minors

—was developed in accordance with the objectives of the research. The codebook examined Member State regulations along five thematic dimensions: (A) the exposure of minors to criminal liability in cases involving CSGIV content; (B) the existence of a criminal law distinction between consensual production/possession and distribution; (C) the presence of exceptions or close-in-age safeguards aimed at preventing criminalisation; (D) the availability of child protection or diversionary alternatives; and (E) the extent to which the regulatory framework reflects the principles of proportionality and ultima ratio.

Dimension A examined exposure to criminalisation, in particular whether CSGIV content created by children may fall within the category of CSAM/child pornography under national law (A/1), whether the production of such self-generated content entails criminal liability (A/2), whether its possession or storage on one’s own device is punishable (A/3), whether sending the content to a partner gives rise to criminal liability (A/4), and whether forwarding or disclosing the content to a third person results in criminal liability (A/5).

Dimension B examined whether national law distinguishes between consensual production/possession and distribution. In particular, it assessed whether a doctrinal or procedural distinction exists between primary and secondary sexting (B/1), whether the non-consensual distribution of another person’s image is treated as a more serious offence (B/2), and whether there exists a separate offence or legal instrument that sanctions non-consensual image dissemination without rendering the child an offender under CSAM/child pornography provisions (B/3).

Dimension C focused on legal safeguards aimed at preventing the criminalisation of children. It examined whether the law explicitly excludes criminal liability in consensual, peer-to-peer, private cases (C/1), whether a close-in-age safeguard exists (C/2), and whether legal practice distinguishes between private storage and distribution (C/3).

Dimension D examined the presence of child protection and diversionary alternatives. It assessed whether the monitoring materials indicate that the state prefers a child protection or educational approach rather than a criminal law response (D/1), and whether the removal of content is addressed in conjunction with child protection measures (D/2).

Finally, dimension E analysed whether the monitoring materials or national documents refer to the principles of proportionality, the best interests of the child, or the ultima ratio character of criminal law (E/1), and whether the issue of the criminalisation of children is explicitly addressed (E/2).

The coding conducted along dimensions A–E made it possible to distinguish whether a Member State merely classifies CSGIV under CSAM offences in a technical sense, or whether it criminalises minors, and whether child protection–oriented alternatives are available that address the risks associated with sexting without stigmatising the child.

3. Findings

The comparative analysis of the 27 Member States reveals considerable differences in the criminal law treatment of minors-to-minor sexting. Although in most Member States CSGIV may conceptually fall within the category of CSAM (in many jurisdictions within the offence framework of child pornography) (A1 predominantly coded as 1 or 2), the key differences lie in the presence of explicit safeguards designed to limit the risk of criminalisation (C dimensions). Based on the combined patterns across dimensions A–E of the codebook, three regulatory models can be distinguished (

Table 2. Regulatory models of minor-to-minor sexting in EU Member States.

Model	Regulatory Characteristics	Member States	n (%)
Model 1—Explicit differentiation and child-rights safeguards	Explicit peer exemption or close-in-age safeguard; clear distinction between primary and secondary sexting; alternative offences for non-consensual dissemination	Austria, Belgium, Croatia, Cyprus, Denmark, Estonia, Finland, Germany, Greece, Slovenia, Sweden	11 (41%)
Model 2—Technical criminalisation with implicit mitigation	Self-generated content may formally fall under CSAM provisions; no explicit statutory exemption; mitigation mainly through interpretation or prosecutorial discretion	Bulgaria, Czechia, France, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Spain	15 (55%)
Model 3—Broad criminalisation risk	Self-generated content may lead to criminal liability without peer exemption or close-in-age safeguard	Ireland	1 (4%)

The models are further explained below.

). Some states display hybrid characteristics; therefore, the classification reflects the predominant structural orientation of the respective legal system.

3.1. Model 1: Systems with Explicit Differentiation and Child Rights Safeguards

In this model, criminalisation is not automatic but limited and differentiated. In these Member States, legislators introduce explicit exceptions or close-in-age safeguards for consensual sexting between peers, thereby removing such conduct from the scope of criminal liability. These systems typically distinguish between primary and secondary sexting (B1 = 2), treat non-consensual distribution more seriously (B2 often coded as 1 or 2), and in several cases provide legal avenues outside the CSAM framework to sanction harmful sharing (B3 = 2).

3.2. Model 2: Technical Criminalisation with Implicit or Partial Mitigation

In the Member States falling within this model, primary sexting is in principle criminalisable, as the self-production (A2) and/or possession (A3) of such content is in several cases coded as 1 or 2, and there is no clear, explicit statutory exception for consensual peer cases. At the same time, the system often includes partial doctrinal differentiation (B1 = 1), the possibility of implicit mitigation, or a child protection-oriented approach indicated in the monitoring materials (D1 = 1 or 2).

Within this model, consensual minor-to-minor sexting may formally fall within the scope of CSAM/child pornography offences, while safeguards appear only in implicit or discretionary forms rather than through explicit statutory provisions.

3.3. Model 3: Broad Risk of Criminalisation

In this model, the production, possession, and sending to a partner of self-generated content may all give rise to criminal liability, while no explicit peer exception or close-in-age safeguard is provided. Within this configuration, consensual minor-to-minor sexting may result in criminal exposure across several types of conduct, without explicit exemptions or age-proximity safeguards.

4. Discussion

4.1. Normative Assessment

This section discusses the normative implications of the identified regulatory models and the broader tensions they reveal.

The unauthorised dissemination of intimate content created in the context of sexting may cause serious harm to privacy and mental well-being. States must therefore establish regulatory frameworks that enable the removal of unlawful content and ensure the protection of victims. In cases of non-consensual sexting, this obligation rests on international legal foundations, which are also reinforced by the Lanzarote Convention. According to General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence issued by the United Nations Committee on the Rights of the Child, psychological abuse and technology-mediated harassment fall within the scope of violence against children (Committee on the Rights of the Child 2013).

The examined Member State models reflect different operationalisations of the dual obligation arising from Articles 5, 6, 16, 19, and 34 of the CRC: the effective protection of children against sexual exploitation and abuse, on the one hand, and the requirement to ensure proportionality in criminal law intervention and the best interests of the child, on the other. This dual obligation is complemented by a specific criminal law dimension in the Lanzarote Convention. While Article 20 requires the criminalisation of sexually explicit material depicting children, paragraph (3) explicitly provides States Parties with discretion to address age-appropriate, consensual, privately shared self-generated content through differentiated regulatory approaches. The three regulatory models identified in this study represent different responses to this normative framework. The second thematic monitoring round of the Lanzarote Committee specifically examined the challenges posed by child self-generated sexual images and videos, highlighting that self-produced intimate content occupies a distinctive intermediate space between adolescent self-expression and the risk of sexual exploitation. Consequently, Member States are encouraged to develop regulatory responses that seek a balance between criminalisation and child protection. The normative framework of the Lanzarote Convention—consistent with the participatory rights and the principle of evolving capacities under the CRC—does not emphasise exclusively paternalistic protection but also recognises children’s progressively developing autonomy, which is of particular relevance for the legal assessment of age-appropriate interactions in the digital environment (Espino García 2022).

Model 1 comprises systems in which the legislature implements, at a structural level, the differentiation permitted by the Lanzarote Convention through explicit exceptions, close-in-age safeguards, or a clear distinction between primary and secondary sexting. From a normative perspective, these solutions can be interpreted as a compliance-oriented regulatory model that aligns with international child rights obligations. In such systems, criminalisation focuses on exploitative or non-consensual conduct, while typical forms of adolescent self-expression are not automatically subject to criminal liability. This approach is consistent with the position expressed in General Comment No. 25 (2021) on children’s rights in relation to the digital environment adopted by the United Nations Committee on the Rights of the Child, according to which consensual, privately shared self-generated content should not lead to automatic criminal liability. Within this model, the balance between protection and autonomy is reflected at a structural level.

Model 2 systems may formally comply with international obligations concerning the prohibition of child pornography/CSAM. However, the differentiation between consensual minor-to-minor sexting and exploitative conduct is typically implicit or dependent on judicial discretion. As a result, consensual self-generated content may, from a doctrinal perspective, fall within the scope of CSAM offences, even if it does not always lead to criminal sanctions in practice. This configuration results in a situation of formal compliance but practical uncertainty, which—due to the lack of normative foreseeability—may create tension with the effective realisation of the best interests of the child under the CRC.

Article 17 of the CRC requires States to ensure children’s access to information that promotes their well-being, while at the same time protecting them from harmful content. Consequently, education on online safety, the boundaries of digital self-determination, and the potential legal consequences of online behaviour is widely recognised as an important preventive measure in addressing the risks associated with sexting, particularly when such education goes beyond abstinence-based warnings and includes safe digital practices, consent, relationship ethics, and non-blaming responses to harm (Döring 2014; Ojeda and Del Rey 2022; York et al. 2021).

Education alone, however, is not sufficient to address the risks associated with adolescent sexting. Complementary legal and institutional responses are required, including the adaptation of legal frameworks to the specific characteristics of the digital environment, particularly in the criminal law assessment of consensual sexting. General Comment No. 25 (2021) emphasises that sexual content created by children depicting themselves and shared consensually for private purposes should not automatically result in criminal liability. Such an approach is closely linked to the need to ensure that children can seek help without fear, which cannot be achieved if requesting assistance exposes them to the risk of criminal proceedings. Accordingly, the Committee recommends the use of restorative justice mechanisms, alongside preventive and child protection-oriented approaches (Committee on the Rights of the Child 2021).

In Model 3, the production, possession, and sending to a partner of self-generated content all clearly give rise to criminal liability, without the presence of an explicit peer exception or close-in-age safeguard. In this configuration, the differentiation permitted under the Lanzarote Convention remains de facto unused. This model therefore represents the most pronounced manifestation of the child protection paradox: norms created to protect children may also criminalise typical expressions of adolescent autonomy. In cases where intimate content is shared consensually between peers, the classical elements of sexual exploitation—particularly power asymmetry or coercive circumstances—are generally absent. If criminal law automatically sanctions such conduct, protective provisions may effectively operate against the child: the creator of the self-generated content may simultaneously occupy the position of both victim and offender. This situation creates a direct tension with the principle of the best interests of the child under the CRC.

4.2. Structural Tension Between Protection and Criminalisation

The comparative findings demonstrate that the criminal law treatment of minors-to-minors sexting across the EU reflects a structural tension between child protection and criminalisation, which materialises in three distinct regulatory models. Criminal offences developed to combat the sexual exploitation of children—particularly those relating to CSAM/child pornography—may, in the digital environment, encompass forms of behaviour that do not exhibit the classical elements of exploitation. This dynamic gives rise to the child protection paradox: legal norms designed to protect children may also criminalise typical forms of adolescent self-expression (Morelli et al. 2021; Karaian and Van Meyl 2015).

Particularly in Model 2 and Model 3, the absence or implicit nature of differentiation results in structural legal uncertainty. In such systems, minor-to-minor sexting may formally fall within the scope of CSAM offences, even if legal practice does not always lead to sanctions in every case. This situation may be problematic in several respects: it may undermine the requirement of normative foreseeability, discourage children from seeking help, and ultimately contribute to the erosion of the ultima ratio character of criminal law.

The structural problem therefore lies not in the necessity of combating sexual exploitation, but in the undifferentiated application of criminal law categories. The discretion provided by the Lanzarote Convention is precisely intended to address this tension, allowing for the normative distinction between exploitative conduct and consensual, age-appropriate behaviour.

Non-consensual sexting perpetration is associated with a distinct risk profile, linked to bullying, delinquency, and other forms of deviant behaviour. Empirical research therefore supports the conclusion that abusive dissemination and consensual peer self-generated content constitute fundamentally different phenomena, which cannot be treated doctrinally in the same manner within the traditional CSAM/child pornography prohibition framework (Valido et al. 2020).

The academic literature increasingly emphasises that consensual sexting may be understood as a form of intimate interaction within the digital communication environment and, within the context of adolescents’ psychosexual development, should not in itself be regarded as a deviant phenomenon. Recognising its relative normality is also significant from a prevention perspective, as stigmatising or moralising approaches may discourage young people from seeking help in problematic situations (Wachs et al. 2021). Research examining parental perceptions further indicates that concerns about consensual sexting often stem from cultural interpretations and sexualised framings, which may contribute to the emergence of the child protection paradox (Dobson and Delaney 2023).

Consensual sexting is widely recognised as a form of sexual self-expression among adults, into which young people gradually enter (Gassó et al. 2021). Considering the principle of evolving capacities, legislation should therefore recognise that adolescents’ intimate self-expression in the digital environment is not necessarily equivalent to the structural patterns of sexual exploitation directed against them. Systematic reviews further indicate that adverse mental health outcomes are primarily associated with non-consensual technology-mediated sexual interactions, whereas consensual forms do not demonstrate clear harmful effects (Shaughnessy et al. 2022).

Adolescent online control and digital partner harassment appear to be more closely related to sexist attitudes and patterns of dominance than to the mere creation of sexual content. This observation reinforces the conclusion that the mechanical extension of child protection logic to consensual self-generated content may obscure the underlying risk structures and carries the normative danger of reinforcing the child protection paradox (Rodríguez-Castro et al. 2021).

4.3. Policy Benchmark

Based on the three models identified, it becomes apparent how the differentiation permitted by the Lanzarote Convention may be operationalised within national criminal law systems. Based on the findings, it is possible to identify a set of minimum normative criteria that may serve as guiding principles for legislators and policymakers when developing child-centred regulatory approaches in the digital environment. These guiding principles are outlined below.

4.3.1. Explicit Peer Exemption

Consensual sexting between adolescents—particularly among older age groups—may represent a form of sexual identity development and the exercise of relational autonomy (Lemke and Rogers 2020). In cases involving consensual, age-appropriate, privately shared self-generated content, the explicit statutory exclusion of criminal liability ensures normative foreseeability, allowing young people to better understand in advance whether their conduct may expose them to criminal liability, particularly in light of evidence that adolescents often lack awareness of the legal implications of sexting (Quayle 2022; Villacampa 2017).

Implicit prosecutorial discretion or informal enforcement practices cannot substitute for structural legal certainty. It is the existence of an explicit exception that clarifies that criminalisation is directed exclusively at exploitative or non-consensual conduct (Chatzinikolaou and Lievens 2020; Karaian and Brady 2020).

4.3.2. Close-in-Age Safeguard

As a guiding principle, regulatory frameworks should incorporate close-in-age safeguards to avoid the criminalisation of consensual, age-proximate interactions within adolescent relationships. Taking age proximity into account reduces the risk that typical interactions within adolescent relationships become subject to criminal liability. Such an approach is consistent with the principle of evolving capacities and helps ensure that criminal law does not become a structural risk factor for adolescent identity exploration (Spooner and Vaughn 2016; Holoyda et al. 2018).

This approach is further supported by empirical findings indicating that age functions as a mediating factor in the relationship between sexting and mental health outcomes: among older adolescents, consensual forms show a weaker or non-significant association with psychological harm (Gassó et al. 2019). Accordingly, differentiated regulatory and policy responses are required, whereby educational and preventive programmes should focus primarily on preventing non-consensual and abusive conduct, while promoting healthy relationship skills and the development of digital citizenship (Morelli et al. 2021).

4.3.3. Offences Sanctioning Non-Consensual Image Distribution

The non-consensual dissemination of intimate content—which directly interferes with the rights to privacy and personal integrity—may be more appropriately addressed through the establishment of a separate offence. Such a regulatory approach allows the perpetrator to be held accountable without simultaneously classifying the creator of the self-generated content as an offender under child pornography provisions. Empirical scholarship also distinguishes between mutual, exploratory sexting and aggravated forms involving coercion or exploitation, supporting the view that legal intervention should primarily focus on non-consensual distribution (Hu et al. 2023).

4.3.4. Express Recognition of the Principles of Ultima Ratio and Proportionality

As a core guiding principle, the ultima ratio character of criminal law requires that criminalisation be applied only where strictly necessary. The explicit normative recognition of the exceptional nature of criminal law intervention—whether in legislative reasoning or in interpretative guidelines for legal practitioners—can contribute to the effective realisation of the best interests of the child. Criminalisation should not constitute an automatic response to adolescents’ digital self-expression; the application of criminal law is justified only in cases where the conduct involves genuine elements of exploitation or serious rights violations (Lee and Darcy 2021).

Empirical research clearly indicates that adverse mental health outcomes are primarily associated with non-consensual technology-mediated sexual interactions, whereas no consistent harmful effects can be demonstrated in cases involving mutually consensual forms (Molla Esparza et al. 2020; Lu et al. 2021; Palomino-Ccasa et al. 2025). This supports the conclusion that child protection interventions should primarily focus on coercive and abusive conduct, rather than on the criminalisation of consensual peer communication (Wachs et al. 2021; Soriano-Ayala et al. 2020).

5. Conclusions

This study examined how the Member States of the European Union address, from a criminal law perspective, the issue of consensual self-generated sexual content exchanged between minors within the framework of child rights and international obligations. The structured comparative analysis identifies three distinct regulatory models through which the differentiation permitted under the Lanzarote Convention is operationalised. The findings indicate that the differences between Member States do not concern the necessity of combating sexual exploitation, but rather the normative treatment of consensual, age-appropriate digital interactions.

The absence or implicit nature of differentiation may create a structural risk of criminalisation, potentially subjecting the exercise of children’s evolving capacities to criminal liability. This configuration gives rise to the child protection paradox, whereby norms intended to protect children may themselves contribute to their stigmatisation. The findings suggest that a child-centred regulatory approach in the digital environment requires the explicit normative distinction between exploitative and consensual conduct, as well as the consistent application of the ultima ratio character of criminal law.